On January 19, 2017, the EPA published the 2017 Construction General Permit (CGP) which becomes effective February 16, 2017, replacing the 2012 version. The five-year permit includes all stormwater discharges at construction sites over an acre in size. The permit covers sites in Massachusetts, New Hampshire, and several other states where EPA is the permitting authority. It will serve as a model for similar stormwater programs in states with delegated authority. Sites less than one acre but that are part of a larger overall project are also covered, as are both new and existing sites, new operators of permitted sites, and operators of emergency-related projects.
Though similar to the 2012 CGP, the 2017 version adds several new features. The Federal Register entry highlights nine notable changes: streamlined and simplified language; prohibition of non-stormwater discharges of external building washdown water containing hazardous substances; clarification of certain technology-based effluent limits; additional requirements for notice of permit coverage signs; revised requirements for stockpiles; a modified approach to stabilization deadlines; new requirements for waste containers; limitations for discharge into sensitive waters; and new notice of intent questions.
The most controversial element of the new permit is language making all operators at a site jointly and severally liable for any permit violation. A number of industry groups, including the National Association of Home Builders, Associated General Contractors of America, Federal Stormwater Association, California Stormwater Quality Association, and California Building Industry Association, filed comments on the draft CGP opposing the imposition of joint and several liability on covered operators. Opponents argue that the liability scheme would unfairly punish responsible operators and essentially force them to baby-sit other parties involved in the project to ensure compliance. Given the number of parties on any given development project and the different responsibilities and legal relationships between them, the threat of joint and several liability poses serious concerns.
While a challenge to the joint and several liability scheme is possible, as it stands the permit becomes effective on February 16, and all covered operators will need to be prepared to keep a close eye on all stormwater-related activities – even those outside their specific scope of work.